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Judgment
Miller, J.—The Subdivisional Magistrate proceeding u/s 117 as nearly as practicable in the same way as u/s 242, Criminal Procedure Code,
had to state to the accused, so to style them, the particulars of the matter against them and ask them if they could show cause why they should not
be required to execute bonds.
He says that he made an order u/s 112, an order which appears in the form of a summons, and I understand that that order was explained to the
accused.
But the Subdivisional Magistrate instead of asking them if they were prepared to show cause why they should not be required to execute bonds
put this question to them:
Are you willing to execute the bonds required, or do you wish for further enquiry?
And they replied that they would execute bonds. It seems to me that this was a misleading question not calculated to ascertain the truth of the
information against the accused. They were not asked whether the information was true or false and they did not admit its truth. By Section 117 the
Magistrate is required to satisfy himself by enquiry of the truth of the information before making an order for the execution of the bond, and though
it may be that the question put u/s 242 is sufficient enquiry if it produces an answer which shows that the information is true, no such answer was
obtained in the present case.
The enquiry u/s 117 being irregular, the order of the Subdivisional Magistrate must be set aside.
It is not clear to me, and it is not necessary to decide, that the procedure Of the Second Class Magistrate was irregular as the District
Magistrate suggests; nor do I decide whether the District Magistrate was right in his view of his powers u/s 125, Criminal Procedure Code. The
decision to which he refers has, however, been overruled by a Full Bench of the Calcutta High Court [Nabu Sardar v. Emperor ILR (1907) Cal.
1].
It is probable that there exists no reason for further proceedings, and the Public Prosecutor does not ask for any order.
The orders are set aside and the bonds cancelled.